40 years old. and it may never be solved. but next time you see a cool picture of the earth from space, don't take it for granted. don't just assume that kind of thing is easy to do, just jump up in a satellite. take a minute to savor how freaking unbelievable it is they were ever able to get a shot like that at all. that does it for us tonight. rachel will be back here monday. don't forget, you can check out my work at the "washington post" at wonkblog.com, or follow me o. twi twitter point come and facebook. gay marriage. an american right? let's play "hardball." ♪ good evening. i'm chris matthews in washington. let me start with this. today the united states supreme court said it would take up the issue of same-sex marriage. this is an astounding moment in american history and in the

march of rights that began in philadelphia in the last quarter of the 18th century and continues through this first quarter of the 21st. is it constitutional for a state to deny people of the same sex the right to marry under the law? well, let's consider the 14th amendment. nor shall any state deprive any person of life, liberty, or property without due process of law nor deny to any person within its jurisdiction the equal protections of the laws. and here is justice kennedy, anthony kennedy, in his majority opinion in the lawrence case of 2003 which declared anti-sodomy laws unconstitutional. quote, does a statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violate the due process clause? yes. a statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the due process law. quote, liberty protects the person from unwarranted government intrusions. freedom extends upon spatial bounds. liberty presumes an autonomy of

self that includes freedom of thought, belief, expression, and certain intimate conduct. the defendants are adults, and their conduct was in private and consensual, and, quote, to declare the issue as one related to the right to engage in certain sexual conduct demeans the claim the individual put forward. so could it happen? could it happen next year? that the supreme court declare it is unconstitutional to deny people of the same sex the right to marry? what a question, what a story. joining me now is the president of the human rights campaign, chad griffin, and gay rights advocate elizabeth birch. i hope i set it up as best i could. i can't write the majority opinion next year. i think i know what the majority opinion should look like. your thoughts? >> i couldn't have said it better, chris. it really is an incredible day today, that the supreme court is taking the prop 8 case, the perry case, as well as the doma case. and, you know, look, when this case was filed almost four years ago, the prop 8 case, we made

the case in court, ted olson and david boyce, that in this country we don't deny our citizens a fundamental right, and the supreme court has called marriage a fundamental right no less than 14 times in the history of this country, and i'm optimistic that once the court does hear this case and the doma case, they're going to come down on the side of freedom, liberty, and equality just as they have so many times in our nation's past. >> and equal protection of the laws. elizabeth, thank you for coming on. very haven't seen you in a while. equal protection of the laws. liberty is a pretty profound notion in this country. >> it is. >> pursuit of happiness is in our declaration. why not? >> here is the thing, if you are gay and alive in our time in america, we're living in a kind of a policy and civil rights renaissance. we have seen extraordinary leadership from other parts of government already. don't we judge, chris, presidents by whether they stand up to the moment of history in which they live? we have seen president obama step up to this issue, gay marriage -- >> getting rid of don't ask,

don't tell. now saying he won't endorse doma. >> and our military has stepped up. >> even the marines are doing a great job. >> even the marines are. now we have to see will the supreme court also keep pace in our time with the other major institutions. >> chad, you're the expert. i've supported it, my wife has for years, the human rights campaign. you have a hell of a name, human rights campaign. it's a great name. the liberty clause. if you get to the idea of the 14th amendment. life, liberty, and property cannot be denied to you. except through due process of the law. you have to do something wrong. it's got to be a crime. you can't just be denied liberty. your thoughts on that issue and how that can be used in the constitution? >> that's exactly right. and there is no state interest to deny our citizens and the plaintiffs in this case the fundamental right to marriage. you know, chris, often times we get lost a bit when we're talking about these things, talking about the politics and the law, but at the end of the day there are fundamental lives at stake. when we filed this case, chris

and sandy and jeff and paul had been together for ten years. now they have been together for almost 12, over 13 years. chris and sandy's twin boys were just entering high school. when this case is heard, they will be getting ready to graduate from high school. their moms deserve the same freedom to marry just as everyone else has in this country. >> isn't it true that when we had this in the court in the ninth in the appellate level, nobody came forward because nobody could come up with what you call a justification, some compelling reason. just chat on that point. you raised it. there's no compelling reason against giving the rights to people, the right to marriage. >> that's exactly right, chris. it's important to note in both of these cases, the united states government has refused to defend doma, the federal law that's now before this court, and when we filed the case right here in california, as one has to do, we sued the governor at the time, which was arnold schwarzenegger and our attorney general at the time, which was jerry brown, the current governor. both responded by refusing to defend the case and ultimately joined our side in the case and said it was fundamentally an unconstitutional law and they

weren't going to defend it. so the judge in our case, chief judge vaughn walker, who wrote that historic ruling in this case, allowed the intervening defendants, the proponents of prop 8, to intervene and to defend the case. on the doma case, a small group of folks on capitol hill out of the house have come together and are defending it because the federal government won't. at the end of the day this is unconstitutional, and everyone knows it. >> it's a day in history here. this could be a major moment in the court's history. look at what tom goldstein of scotus blogged last week. quote, i have never before seen cases i believe would be discussed 200 years from now. bush v. gore, obama care were relative pipsqueaks. the government's assertion of the power to prohibit a loving couple to marry or to refuse to recognize such a marriage is profound. so is the opposite claim that five justices can read the federal constitution to strip the people of the power to enact the laws governing such a fundamental social institution.

you know, elizabeth, it's not like we're talking about rock of ages, the big surprise. we have nine states that have done it. in this past election, which i think is very pivotal, four states did it completely by popular vote. no court ruling on rights, just public will. >> for the first time in 40 years in four states, thanks to the efforts of chad and a lot of other people, for the first time there was a populist vote, and the people spoke. they have never spoken in favor before, but there are really two ways. it's also equal protection under the law and also that the court has found it to be a fundamental right. this is an extraordinary, extraordinary time, and -- >> let's cut this in two. there's two questions here. one is doma, the defense of marriage act. this administration will not defend it in the courts. if that gets struck down, what does that say to cases around the country where people have been allowed to marry in the same gender? chad, on that. what happens it doma gets struck down by the court, 5-4 or whatever?

>> the ridiculously named defense of marriage act would be gone obviously. >> what would it mean to a gay person who is married? >> that would mean that couples who are married in those states as well as the district of columbia, their marriages would be recognized by the federal government. now, it would mean we still have a lot of work to do, and depending on how they rule in the prop 8 case, we would still need other states to move forward with the right to marry. >> right. >> thank you. it's an honor to have you on and your organization. elizabeth birch, we are in a much bigger studio. the republican establishment is at war with its crazy wing. they say they lost the election because ideologues pulled mitt romney foo far to the right. that sounds reasonable. wrong says the right wing. we lost because mitt romney wasn't right wing enough. the winner of this little tango will determine whether the gop moves to the center where it might find some votes or becomes an even more fringy party. also, the fiscal cliff. it's down to two people. everybody seems to agree, two people get in the room, the president and the leader of the

opposition, john boehner, the speaker. should be interesting. they may be closer, some argue, to an agreement than we think. the question is can they sell the deal to their bases, to their fringies, left and right i must say. plus, republicans say they would change after the election and they are. guess what? they're changing the rules. some of them are proposing to republicans in pennsylvania and three other states obama won, they're trying to eliminate the winner-take-all system of awarding electoral votes. why not? that way republicans could win electoral votes in states they lose. that's a good deal. new jersey governor chris christie finally meets his idol. new jersey's most famous resident, the man he has seen in concert more than 100 times. the governor and the boss, bruce springsteen. they're friends now. this is "hardball," the place for politics. [ male announcer ] take dayquil...

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welcome back to "hardball." here is one of the easiest predictions after any election, especially this one. the republican party would split in two. on one side you have the establishment republicans, the john boehner, mitch mcconnell wing of the party. to them the election was lost because the conservative ideologues pulled mitt romney so far to the right in the primaries he could never find his way back to the middle in november. on the other side is the right wing, jim demint, rick santorum, the talk radio conservative media industrial complex. they make the same argument ideologues always make when they lose. the problem to them was our guy wasn't ideological enough. the conflict is playing out in technicolor with demint blowing the united states senate to become the ceo of the conservative movement and firing a warning shot at boehner in the process. joining me are michael steele, former rnc chair, now one of us, and joy reid, managing editor of thegrio.com. she's also one of us. thank you, gentleman and lady. i want you to look at something. this is what happens when you go near what i call the misery index, the rush limbaugh show. yesterday jim demint, still the united states senator from south carolina, and the outgoing

heritage president ed fuelner went on rush, the misery index, and yuck-yucked about john boehner. they made fun of the speaker. let's listen. >> well, i think it's safe to say boehner is not forcing either of you guys out, right? >> that's pretty true. >> it might work a little bit the other way, rush. >> what do you make of that? it might work a little bit the other way. here is an outgoing united states senator not being very outgoing about the speaker of the house saying he might lose his job because demint is going to the heritage foundation. explain that rubik's cube. >> actually, there's no connection. that's just idle banter with rush limbaugh. the speaker is going to be back in charge. he's negotiating right now with the president. >> but why clip the speaker on the way by? >> it's sort of setting the stage for what's to come. he's going to go out, he's got a new platform, an elevated voice, if you will. he's not one of 100. he's now really representing a

lot of conservative voices around the country, but the thing to be careful about here is, you know, you talked about the split within the party. that split has been there for a while. it's not just after this election. it goes back a good number of years, and it's not about some ideological i'm more conservative than you. it really is trying to figure out and marshal together those core principles that revolve around the economic realities that this country has to face. >> what's the fight about? >> the fight is about who gets to articulate it, who gets to decide and make the kind of decisions -- >> just personnel? >> it's not so much personnel as it is personality. >> wait a minute. let's step back. i want to bring in joy. looking at it from across the aisle, i know you're more progressive, to put it lightly. here is the story. you have demint out there running a candidate against mitch mcconnell to his right, almost beating him last time around, trying to move the party to the right. selecting candidates like sharron angle and some of the whackier ones like christine o'donnell. all around the country always

trying to get several notches to the right of what we have. bob bennett, not right wing enough, orin hatch, not right win enough, john mccain not right wing -- their idea of right wing is way out, and the leader of them all is this guy who is leaving the senate. how do you see it? >> i think this is the place where the conservative movement and the republican party often times part ways, and jim demint has been the burr in the bonnet of mitch mcconnell who people on the left think of as this hard right intransigent guy because he said his top priority was making barack obama a one-term president, but really mitch mcconnell in a lot of ways is like john boehner. an old-time dealmaker. people like jim demint can't stand people like that. they feel the party has become to easy to capitulate. remember with the budget control act when democrats were screaming bloody murder and thought the president had capitulated? guess what? on the far right they thought john boehner and mitch mcconnell had capitulated and lost that negotiation. they want the party further and further to the right. what demint specializes in doing is finding candidates to primary

other republicans and to try to push the party further and further to the outskirts. >> what do you think of that? >> i think there's some truth to that. what is interesting to me is that during the bush years, where were all these voices when all the spending was going on? >> he wasn't -- >> there's a certain level of disingenuousness there. you have to be careful in making these broad brush -- >> let me ask you a question. if you were back at your old job, rnc chair, you may be there again for all i know, how would you umpire this thing? would you go to demint and his crowd moving to the outside to sort of build their sort of logger out there to fight the establishment or would you say, wait a minute, the future is dead center conservative. it's not fringy, it's not john birch, not going over -- >> i would remind them we're a center right party very much like the country -- >> i don't agree with that. >> the country is center right. >> they just voted for obama. >> center left. >> that's another show. we'll have that conversation. but the country is center right in large measure. >> we can't have another

arithmetic system. >> this is not about the math. this is about the facts and the realities on the ground. >> the facts. the numbers. >> 51% of the people identify themselves as pro-life. that's center right. >> they don't support outlawing -- >> another show. >> they don't believe in outlawing abortion. they just support life. >> self-identify as pro-life. let's move on. the point is this. >> no. i can't move on. this country is -- when it comes down to the law, the people are pro-choice. when it comes to values, they may be against abortion. we can't go any further. >> a personhood amendment failed in mississippi. you have just said the country is a center right country, and your evidence of that is that obama won? >> no, that's your evidence. >> what evidence do you have that it's center right? >> what i'm talking about is on the issues that the conservative movement is going to be talking to the country about -- >> taxing the rich? they're against that.

>> there are individuals out there that they can appeal to, and my point is more broadly speaking that you cannot lump this -- what demint is doing and saying that all this gaggle of conservatives are going to be following behind it. >> i agree with that part. >> the split is much more than you think it is within the party. and so that's got to be reconciled to be honest about it. it's got to be reconciled, and to your point and your question about what would i say? i would say, look -- >> you're center right. you think the country is like you. >> understand where the country is, and that's where you need to be. >> rush limbaugh's show yesterday demint said conservatives' problem is not their message. their problem is getting their message out. let's listen. >> i think the problem is, as conservatives, we have not taken enough control of our message and our ideas and communicated them directly to the american people. that's what we want to do at heritage. >> don't you love the way he chews on that stogie. not that there's anything wrong with it.

joy, you're back here again. every party that loses an election, the ideological wing of that party always says, you didn't get your message across. if they only could hear clearly what she was saying. do you buy that? >> it's the packaging. and you know what? jim demint has been saying this for a long time. it's not what's in the box, it's the packaging. look what he did with marco rubio. a perfect study of what jim demint specializes in. you take a guy who is, himself, latino. you say to latinos, look at this guy. he's brown like you. but when he starts to speak, he has to say the same doctrine script and say party line. he has to be against the dream act. he has to be doctrine everything. marco rubio was for privatizing social security. he's for all the same stuff that the american people over and over again have rejected ideawise, but he can put it in a nicer package. that's what jim demint has been trying to say. >> how do you say self-deportation in spanish? >> i don't think there's a term for it. >> i won't go there.

but i think to joy's point, and she makes a good one, that i think the reality for the gop right now is it's no longer about the packaging. it really is about the substance -- >> it's a center right party back to your strong point. >> exactly. it's about the substance of the argument you have to make to the american people, and we can disagree or agree on whether the country is center right or center left, but the fact of the matter is we need to be wherever the country is, that sweet spot to have that conversation. >> can i give you some advice? >> please. >> run christie. thank you. you got it. >> chris christie against hillary clinton would be -- >> it would be a barn burner. >> one is careful and professional. the other is a wild swinger, you don't know what he's going to do, overweight, the whole thing. wow, what an election. thank you, michael steele. happy weekend. joy reid, relax this weekend. speaking of chris christie, he gets what he's wanted his whole life. this guy is a regular guy in some ways. that's ahead on "hardball," the place for politics.

welcome back to "hardball." time for the "sideshow." first, governor chris christie, as i said, is an outrageous bruce springsteen fan. he's been to over 100 of the boss' concerts, but self-proclaimed liberal bruce himself hasn't returned the love until lately. last night christie told jon stewart about meeting springsteen at the nbc telethon for hurricane sandy. >> i was on the stage afterwards talking to steve van zandt and max, and all of a sudden they were looking behind me. they moved away and stopped talking. so i turned around, and there he was. >> and there he was. >> there he was. >> and he gave you -- >> he put his hand out, and i shook his hand. i tried to be cool, i wasn't. >> no. >> and then he said, come on, give me a hug. and i said, all right. and i hugged him, and -- >> and did he go, come on, stop. >> no.

you know, that's always hard to judge, right. when do you stop the man hug? it's hard -- >> you got to give also this, the pat, or did you just go slow dance? >> no, i went slow dance. >> you've got to be kidding. >> i went slow dance. i did. >> no pat? >> no pat, i went slow dance. but then he said the most amazing thing to me. he said, it's official, we're friends. >> oh, wow. that's nice. that's nice. >> sounds like getting a knighthood, a jersey knighthood. next, remember this from the final days of the presidential campaign? >> i will come on "morning joe" and i will shave off my mustache of 40 years if we lose any of those three states. >> that's right. our old friend and obama adviser david axelrod was so confident president obama would win pennsylvania, michigan, and minnesota he bet his mustache. he soon turned the bet into a challenge with joe to raise money for epilepsy.

he's championed the cause in support of his daughter. thanks to joe and mika, they met their goal of $1 million raised, and ax lived up with his pledge. here is "morning joe" today. >> i have been staring at it for 40 years, savannah. i'm very attached to it. i was up all night, to be honest with you. >> oh, good lord. >> it's a little unsettling. >> well, here you can see side by side before and after footage of ax. what do you think? coming up next, "your business" with j.j. ramberg. it's kind of like drinking a food that's a drink, or a drink that's a food, woooooh! [ male announcer ] taste it and describe the indescribable. could've had a v8.